Kenneth Anderson, a law professor at Washington College of Law, American University, Washington DC, and a member of the Hoover Task Force on National Security and Law, blogs on topics related to international laws of war, international law, related human rights topics, international NGOs, and the theory of the just war. (Mostly inactive these days, everything here is first draft and subject to changing my mind.)

Friday, January 23, 2009

I am unclear as to one thing in the Executive Order issued by President Obama regarding interrogation practices. The text of the Executive Order is here. It provides that the CIA must conform to the Army manual with respect to interrogation techniques, but says (bold-face added):

(b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense.

I am unclear why the language “any armed conflict” is included. Why would the Executive Order not direct the CIA to conform to such techniques as limited to the Army manual under all circumstances? The CIA does not act solely in the context of armed conflict; on the contrary, although it sometimes acts in armed conflicts, of course, its domestic law authorization extends to non-armed conflict situations as well, provided various domestic legal provisions are met.

I understand of course that under Supreme Court rulings, the US is in an armed conflict with Al Qaeda - the specific legal meaning in domestic law of the global war on terror - and that this was the mechanism by which the Court applied Common Article Three standards. (That holding has always seemed to me quite unjustified as a matter of the text of the Geneva Conventions and the history of Common Article Three; I regard it as an instance of the Court, without a lot of expert knowledge or briefing, grabbing onto a legal text that allowed it to prescribe and proscribe the conduct it wanted, result oriented jurisprudence. But okay, water under the bridge.) The Court has ruled that as a matter of US domestic law, the US is at war with Al Qaeda everywhere, and in the conclusion that it is a war, all branches of the USG have concurred. As far as US law is concerned, it’s war with Al Qaeda and the meaning of the Executive Order is clear on this point.

But a couple of things. One, not everyone agrees that as a matter of international law, IHL, the US is legally at war with Al Qaeda in the sense of a global, everywhere in the world, armed conflict governed by IHL. So far as I last understood the ICRC view, it did not believe this. On the contrary, the last time I was in a public meeting with the ICRC, for example - at SAIS here in DC - its view was that as an international law matter, the US was involved in two wars, one taking place in the theatre of Afghanistan and the other in the theatre of Iraq. It was simply not factually the case that there was a “global war” underway in a legal sense; although it plainly welcomed the result reached by the Supreme Court in deeming Common Article Three applicable, so far as I have understood it has not accepted that there is a global war in a legal sense. And, let me add, that is my view as an international law matter as well; I distinguish between the strategic virtues of seeing a global war and the legal facts.

Suppose, however, that the Obama administration were also to reach this conclusion about the issue of whether there is, as a matter of international law, a global war that reaches to all agents of Al Qaeda? I.e., conclude that there is no global war? What would be the reach of the Executive Order?

Well, that’s pretty easily handled by the lawyers. I just don’t understand why the limitation. More importantly, however, even in the context of jihadist terrorism, it is not the case now and will certainly not be the case into the future that future terrorists will always and necessarily be part of or affiliated with Al Qaeda. The whole idea of affiliation in a membership or ‘corporate’ sense has been eroding in favor of far looser networks of ideology. Not to mention covert action in the future that has nothing to do with jihadists. If that is the case, then sooner or later, folks picked up by the CIA will not be part of “any armed conflict.” Will the CIA be limited to the Army manual in those circumstances, given that they will not necessarily be picked up in the course of an armed conflict? Why the limitation?

I suppose I might be missing something really obvious here, so I would welcome anyone explaining the reason for this limiting “in any armed conflict” language.